Singh v. Attorney Gen. of U.S.

• Decision Date: 06 October 2016
• Docket Number: No. 15-2274,15-2274
• Citation: 839 F.3d 273
• Parties: Gurpreet Singh, Petitioner v. Attorney General of the United States of America, Respondent
• Court: U.S. Court of Appeals — Third Circuit

839 F.3d 273

Gurpreet Singh, Petitioner

v.Attorney General of the United States of America, Respondent

No. 15-2274

United States Court of Appeals, Third Circuit.

Argued: February 29, 2016

Filed: October 6, 2016

Daniel B. Conklin, Esq., Craig R. Shagin, Esq. [Argued], The Shagin Law Group, 120 South Street, The Inns of St. Jude, Harrisburg, PA 17101, Counsel for Petitioner

Elizabeth R. Chapman, Esq. [Argued], United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent

Before: AMBRO, JORDAN, and SCIRICA, Circuit Judges.

OPINION OF THE COURT

SCIRICA

, Circuit Judge

This immigration case concerns whether Gurpreet Singh's conviction under 35 P.S. § 780–113(a)(30) was an aggravated felony under the Immigration and Nationality Act (INA), which would make him ineligible for discretionary relief from removal from the United States. We will grant the petition for review, vacate the opinion of the Board of Immigration Appeals (BIA), and remand to the BIA for further proceedings.

I.

A.

Under the INA, “[a]ny alien who is convicted of an aggravated felony at any time after admission” is removable from the United States. 8 U.S.C. § 1227(a)(2)(A)(iii)

. Being convicted of an aggravated felony also makes an alien ineligible for certain forms of discretionary relief from removal. See id. §§ 1158(b)(2)(A)(ii), (B)(i); §§ 1229b(a)(3), (b)(1)(C).

Congress has defined an “aggravated felony” to include, in pertinent part, “illicit trafficking in a controlled substance (as defined in section 802 of Title 21), including a drug trafficking crime (as defined in section 924(c) of Title 18).”¹ 8 U.S.C. § 1101(a)(43)(B)

. In turn, a “drug trafficking crime” is defined as “any felony punishable under the Controlled Substances Act (21 U.S.C. [§] 801 et seq. ).” 18 U.S.C. § 924(c)(2). A “felony punishable under the Controlled Substances Act” can include not only federal offenses, but also state offenses. See

Moncrieffe v. Holder , –––U.S. ––––, 133 S.Ct. 1678, 1683, 185 L.Ed.2d 727 (2013). And a “state offense constitutes a ‘felony punishable under the Controlled Substances Act’ only if it proscribes conduct punishable as a felony under that federal law.” Lopez v. Gonzales , 549 U.S. 47, 60, 127 S.Ct. 625, 166 L.Ed.2d 462 (2006).

To determine whether a state offense proscribes conduct punishable as a felony under the Controlled Substances Act, we generally employ a “categorical approach” to the underlying statute of conviction. See Moncrieffe , 133 S.Ct. at 1684

. Under the categorical approach, we “focus solely on whether the elements of the crime of conviction sufficiently match the elements of [the] generic [federal offense], while ignoring the particular facts of the case.” Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2248, 195 L.Ed.2d 604 (2016). We look “not to the facts of the particular prior case, but instead to whether the state statute defining the crime of conviction categorically fits within the generic federal definition of a corresponding aggravated felony.” Moncrieffe , 133 S.Ct. at 1684 (internal quotation marks omitted). “Because we examine what the state conviction necessarily involved, not the facts underlying the case, we must presume that the conviction rested upon nothing more than the least of the acts criminalized, and then determine whether even those acts are encompassed by the generic federal offense.” Id. (internal quotation marks and formatting omitted). And “our focus on the minimum conduct criminalized by the state statute is not an invitation to apply ‘legal imagination’ to the state offense; there must be ‘a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.’ ” Moncrieffe , 133 S.Ct. at 1684 (quoting Gonzales v. Duenas–Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ).

But some cases involve convictions under state statutes that “list elements in the alternative, and thereby define multiple crimes,” Mathis , 136 S.Ct. at 2249

, or that “contain several different crimes, each described separately,” Moncrieffe , 133 S.Ct. at 1684. The Supreme Court refers to these statutes as “divisible” statutes. Mathis , 136 S.Ct. at 2249

. To these statutes, we apply the “modified categorical approach.”²

See id. ; Mellouli v. Lynch , ––– U.S. ––––, 135 S.Ct. 1980, 1986 n.4, 192 L.Ed.2d 60 (2015) ; see also

Rojas v. Att'y Gen. of the U.S. , 728 F.3d 203, 215 (3d Cir. 2013) (en banc) (noting the modified categorical approach applies “[w]hen a statute of conviction lists elements in the alternative, some of which fit the federal definition and some of which do not”). We apply the modified categorical approach to divisible statutes in order to “determine what crime, with what elements, a defendant was convicted of.” Mathis , 136 S.Ct. at 2249 ; see also

Moncrieffe , 133 S.Ct. at 1684 (holding the modified categorical approach is applied to divisible statutes in order to “determine which particular offense the noncitizen was convicted of”); Evanson v. Att'y Gen. of the U.S. , 550 F.3d 284, 291 (3d Cir. 2008) (holding courts should use the modified categorical approach “to determine which of the alternative elements was the actual basis for the underlying conviction”).

Under the modified categorical approach, “a court may determine which particular offense the noncitizen was convicted of by examining the charging document and jury instructions, or in the case of a guilty plea, the plea agreement, plea colloquy, or some comparable judicial record of the factual basis for the plea.” Moncrieffe , 133 S.Ct. at 1684

(internal quotation marks omitted); see also

Shepard v. United States , 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (“generally limit[ing]” a court “to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented”). But “[o]ff limits to the adjudicator ... is any inquiry into the particular facts of the case.” Mellouli , 135 S.Ct. at 1986 n.4.

B.

Singh is a citizen of India who was admitted to the United States as a lawful permanent resident in 2009. He ran two convenience stores in Clearfield County, Pennsylvania. In November 2011, Pennsylvania State Police troopers searched his stores for illegal substances. As a result of these searches, almost one year later, the Clearfield County District Attorney filed two separate criminal informations against Singh, charging him with violating 35 P.S. § 780–113(a)(30), which outlaws “the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance ... or knowingly creating, delivering, or possessing with intent to deliver, a counterfeit controlled substance,” (2) conspiring to violate § 780–113(a)(30), in violation of Pennsylvania's conspiracy statute, 18 Pa. C.S.A. § 903(a)(1), and (3)

violating 35 P.S. § 780–113(a)(16), which outlaws “[k]nowingly or intentionally possessing a controlled or counterfeit substance.” AII–224 to –225.³ The informations did not specify the substance in question.

On May 1, 2013, Singh pleaded guilty to one count of violating § 780–113(a)(30) and one count of conspiring to violate § 780–113(a)(30). Both Singh and the District Attorney signed a “Negotiated Plea Agreement and Guilty Plea Colloquy” describing these counts as involving a “PA Counterf[e]it Substance—Non Fed.” AII–239. Singh also signed a separate form document titled “Guilty Plea Colloquy.” AII–241 to –244. Paragraph 43 of the Guilty Plea Colloquy reads: “Do you agree that the facts set forth in the Criminal Complaint and Affidavit of Probable cause filed against you are an accurate statement of your role in regard to the charges to which you are pleading guilty?” AII–243 ¶ 43. Singh circled “YES.” Id.

The transcript of Singh's oral plea colloquy indicates he pled guilty to “possession with intent to deliver a counterfeit substance under Pennsylvania law but not under federal law” and “criminal conspiracy to commit possession with the intent to deliver, a counterfeit substance, which is designated a counterfeit substance, under Pennsylvania law but not under federal law.” AII–299. The transcript of the oral plea colloquy, like the informations, did not specify the substance in question. Singh was sentenced to an indefinite term of imprisonment not to exceed one year less one day.

On April 17, 2014, the Department of Homeland Security (DHS) began removal proceedings against Singh under the INA. DHS charged Singh as removable under four sets of statutory provisions: (1) 8 U.S.C. § 1227(a)(2)(A)(iii)

, for being convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(B) (the possession offense); (2) 8 U.S.C. § 1227(a)(2)(B)(i), for being convicted of “a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21)”; (3) 8 U.S.C. § 1227(a)(2)(A)(i), for being convicted of a “crime involving moral turpitude” (“CIMT”); and (4) 8 U.S.C. § 1227(a)(2)(A)(iii) (again), for being convicted of an aggravated felony as defined in 8 U.S.C. § 1101(a)(43)(U) (the conspiracy offense).

On June 18, 2014, an immigration judge (IJ) held Singh was removable under sections 1227(a)(2)(A)(iii)

and 1227(a)(2)(B)(i). To find Singh removable under section 1227(a)(2)(B)(i), the IJ applied the modified categorical approach “to determine whether the offense for which [Singh] was convicted ‘relates to’ a controlled substance as defined in 21 U.S.C. § 802.” AII–276. Looking to the criminal complaint against Singh, the IJ identified the substance Singh was convicted of possessing as JWH–122, a “cannabimimetic agent.” AII–277. The IJ noted JWH–122 “is listed as a schedule I controlled...